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People v. Gorski

OPINION FILED JUNE 11, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DIRON GORSKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant Diron Gorski was convicted of delivering in excess of 30 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)) and sentenced to six years' imprisonment. She appeals, contending she established the defense of entrapment and that the trial court erred in ruling the court was required to impose a fine based on the street value of the cocaine. Defendant argues that the defense of entrapment applies whether the entrapper is a government agent or a private party and that, in any event, the entrapper here may be properly characterized as a police agent.

The evidence disclosed that in June 1984 Officer Lawrence Oliver received a call from Dan Odein, who was an acquaintance of the defendant, who told Oliver he knew of a local cocaine dealer, but could not identify the individual. Oliver asked Odein to call him again if he could substantiate the information and wished to introduce Oliver to the individual. Odein had never had any contact with Oliver prior to this call.

Defendant testified that in July and August 1984 Odein repeatedly called her to request her aid in setting up a drug deal in order to prevent Odein's imprisonment on an unrelated matter. He asked her to find a source of drugs, and alternately appealed to their friendship and threatened to interfere with defendant's relationship with her boyfriend. After a telephone conversation between Odein and defendant on September 19, 1984, James Stevens, a visitor to defendant's apartment, told defendant he could produce some cocaine for Odein.

On September 21, 1984, Odein contacted Officer Oliver again and told him a woman named "Ronnie" would be coming to the Lake View Tavern in Fox Lake that evening to sell cocaine. Odein and Oliver met at the tavern at 7 p.m. and defendant arrived 10 minutes later. Oliver and defendant proceeded to the defendant's car, where she sold him several grams of cocaine and asked Oliver how much business they could do on a monthly basis. Oliver told her they could do further business after defendant attested to the quality of the cocaine and assured him she had an unlimited source.

On September 24, 1984, Odein called Oliver to inquire about defendant's case. He then informed Oliver he had been sentenced to work release in an unrelated case and wished to negotiate the term of his sentence with the State's Attorney. Oliver promised he would write a letter to the prosecutor concerning Odein's cooperation with him in this case.

During the next week, Oliver and the defendant talked regularly. Oliver testified defendant contacted him on September 24, 1984, offering to sell him more cocaine, and reaffirmed she had an unlimited supply. Defendant agreed to sell Oliver four ounces of cocaine the following day, and stated larger purchases could be arranged on a weekly or monthly basis. Oliver testified defendant always contacted him for these conversations.

Defendant testified Odein continued to urge her to sell more cocaine to Oliver. She denied telling Oliver she had an unlimited supply or was willing to negotiate future transactions and stated that Oliver initiated some of their discussions.

Defendant and Oliver arranged to meet at Bill Knapp's restaurant on September 27, 1984, where defendant arrived with James Stevens. After identifying Stevens as her "connect," defendant delivered cocaine to Oliver, whereupon she was arrested.

After a bench trial, the trial court rejected defendant's defense of entrapment, finding Odein was not a police agent and, therefore, the defense could not lie. The court found defendant guilty of delivering in excess of 30 grams of cocaine and sentenced her to six years' imprisonment. In addition, the court imposed a fine of $11,257 based upon the street value of the cocaine, pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1). This appeal followed.

• 1 As her first ground of error, defendant contends the defense of entrapment applies whether the entrapper is a government agent or a private party. Section 7-12 of the Criminal Code of 1961 provides:

"A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated." (Ill. Rev. Stat. 1985, ch. 38, par. 7-12.)

Although the clear language of the statute appears to amply rebut defendant's argument, she seeks to support her position by citing In re Horwitz (1935), 360 Ill. 313, 196 N.E. 208, People v. Ficke (1931), 343 Ill. 367, 175 N.E. 543, and People v. Lewis (1936), 365 Ill. 156, 6 N.E.2d 175.

In In re Horwitz (1935), 360 Ill. 313, 196 N.E. 208, the court dismissed a proceeding to disbar an attorney who had filed a claim for a fictitious automobile injury finding there was no evidence he was aware of the fiction. The fabrication in that case had been set as a trap by an insurance company superintendent to test the honesty of an adjuster. The court also based its dismissal upon a refusal to "countenance trickery and deceit such as this record discloses" 360 Ill. 313, 328, 196 N.E. 208), but did not address the applicability of the entrapment defense where the entrapper is a private individual. Similarly, in People v. Ficke (1931), 343 Ill. 367, 377, 175 N.E. 543, and People v. Lewis (1936), 365 Ill. 156, 159, 6 N.E.2d 175, the court stated it is not entrapment for "an individual or officers to furnish an opportunity for the commission of a criminal offense if the purpose is in ...


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